Tuesday, March 13, 2007

There is no more divisive issue for advocates of progressive immigration reform than the policy of temporary guest workers. As a cornerstone the President's proposed immigration policy, it's been viewed with intense suspicion by many on the left. Some immigration rights advocates, such as Cecilia Muñoz, head of National Council of La Raza see Bush's guest worker program as the best hope to allow future immigrants to enter the country legally and eventually be put on a path to citizenship. Other's see it as dangerous policy, ripe with opportunities for abuse.

Even amongst organize labor, which generally supports legalization of all current undocumented workers and other progressive reforms, there is a divide when it comes to guest workers. The Service Employees International Union (SEIU) has strongly advocated for a modified guest worker program, while the AFL-CIO opposes one.

The Southern Poverty Law Center now weights in on the debate with a report that examines the current H2 visa program which brought approximately 121,000 guestworkers into the United States in 2005. The report released this week called; "Close to Slavery" found widespread abuse and exploitation of the program.Back in January, Andy Stern, head of the Service Employees International Union, sent a letter to Sen. Ted Kennedy, who is working to craft a new immigration reform bill for this legislative session, laying out his union's position on immigration reform and recommendations for any future guestworker program:

SEIU recognizes the need for new workers in the low-wage sector of our expanding economy. However, any new worker program must include worker protections including: portability of visas so that workers can change jobs, the right to join unions and have full labor rights, the right to bring their families with them, and the ability to self-petition for permanent residency and citizenship. SEIU

But according to the SPLC, without carefully written protections and strict enforcement of labor standards any new guest worker program will be ripe for the same kind of exploitation that's prevalent in the current system. Based on interviews with thousands of guestworkers, the report found a pattern or widespread exploitation, deplorable living conditions, and a system that amounts to little more than indentured servitude.

… the United States already has a guestworker program for unskilled laborers — one that is largely hidden from view because the workers are typically socially and geographically isolated. Before we expand this system in the name of immigration reform, we should carefully examine how it operates.

Under the current system, called the H-2 program, employers brought about 121,000 guestworkers into the United States in 2005 — approximately 32,000 for agricultural work and another 89,000 for jobs in forestry, seafood processing, landscaping, construction and other non-agricultural industries.

These workers, though, are not treated like "guests." Rather, they are systematically exploited and abused. Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market — the ability to change jobs if they are mistreated. Instead, they are bound to the employers who "import" them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation.

Federal law and U.S. Department of Labor regulations provide some basic protections to H-2 guestworkers — but they exist mainly on paper. Government enforcement of their rights is almost non-existent. Private attorneys typically won't take up their cause.

Bound to a single employer and without access to legal resources, guestworkers are:

routinely cheated out of wages

forced to mortgage their futures to obtain low-wage, temporary jobs

held virtually captive by employers or labor brokers who seize their documents

After carefully documenting the failures of the current guestworker program, the 48 page report goes on to list recommendations to make any future program more fair and effective.

As this report shows, the H-2 guestworker program is fundamentally flawed. Because guestworkers are tied to a single employer and have little or no ability to enforce their rights, they are routinely exploited. The guestworker program should not be expanded or used as a model for immigration reform. If this program is permitted to continue at all, it should be radically altered to address the vast disparity in power between guestworkers and their employers.

I. Federal laws and regulations protecting guestworkers from abuse must be strengthened:

Guestworkers should be able to obtain visas that do not tie them to a specific employer. The current restriction denies guestworkers the most fundamental protection of a free labor market and is at the heart of many abuses they face.

Congress should provide a process allowing guestworkers to gain permanent residency, with their families, over time. Large-scale, long-term guestworker programs that treat workers as short-term commodities are inconsistent with our society's core values of democracy and fairness.

Employers should be required to bear all the costs of recruiting and transporting guestworkers to this country. Federal regulations should be consistent with the 11th U.S. Circuit Court of Appeals decision in Arriaga v. Florida Pacific Farms. Requiring guestworkers to pay these fees encourages the over-recruitment of guestworkers and puts them in a position of debt peonage that leads to abuse.

Entities acting as labor brokers for employers that actually use the guestworkers should not be allowed to obtain certification from the Department of Labor to bring them in. Allowing these middlemen to obtain certification shields the true employer from responsibility for the mistreatment of guestworkers.

Congress should require the Department of Labor to promulgate labor regulations for H-2B workers that are comparable to the H-2A regulations. It is unconscionable that H-2B workers do not have even the minimal protections available to H-2A workers.

Congress should require employers to pay at least the "adverse effect wage rate" in all guestworker programs to protect against the downward pressure on wages. Guestworker programs should not be a mechanism to drive wages down to the minimum wage.

Congress should eliminate the barriers that prevent guestworkers from receiving workers' compensation benefits. Workers currently must navigate a bewildering state-by-state system that effectively blocks many injured workers from obtaining benefits.

Guestworkers should be protected from discrimination on the same terms as workers hired in the United States. Permitting employers to "shop" for workers with certain characteristics outside of the United States is offensive to our system of justice and nondiscrimination.

II. Federal agency enforcement of guestworker protections must be strengthened:

Congress should require that all employers report to the Department of Labor, at the conclusion of a guestworker's term of employment and under penalty of perjury, on their compliance with the terms of the law and the guestworker's contract. There currently is no mechanism allowing the government to ensure that employers comply with guestworker contracts.

Employers using guestworkers should be required to post a bond that is at least sufficient in value to cover the workers' legal wages. A system should be created to permit workers to make claims against the bond. Guestworkers, who must return to their country when their visas expire, typically have no way of recovering earned wages that are not paid by employers.

There should be a massive increase in funding for federal agency enforcement of guestworker protections. Guestworkers are the most vulnerable workers in this country, but there is scant government enforcement of their rights.

The Department of Labor should be authorized to enforce all guestworker agreements. The DOL takes the position that it does not have legal authority to enforce H-2B guestworker contracts.

The Department of Labor should create a streamlined process to deny guestworker applications from employers that have violated the rights of guestworkers. Employers who abuse guestworkers continue to be granted certification by the DOL to bring in new workers.

III. Congress must provide guestworkers with meaningful access to the courts:

Congress should make all guestworkers eligible for federally funded legal services. H-2B workers are currently not eligible for legal aid services.

Because of the unique challenges faced by guestworkers, the restriction on federally funded legal services that prohibits class action representation should be lifted.

Congress should provide a civil cause of action and criminal penalties for employers or persons who confiscate or hold guestworker documents. This common tactic is designed to hold guestworkers hostage.

Congress should provide a federal cause of action allowing all guestworkers to enforce their contracts.

These reforms are overdue. For too long, our country has benefited from the labor provided by guestworkers but has failed to provide a fair system that respects their human rights and upholds the most basic values of our democracy. The time has come for Congress to overhaul our shamefully abusive guestworker system. Close To Slavery; Guestworker Programs in the United States SPLC (PDF)

This new report, along with its recommendations, will certainly add a new dimension to the debate over any new temporary guest worker proposal. By documenting and examining what has happened when, as President Bush likes to claim, "willing foreign workers (are matched) with willing American employers, when no Americans can be found to fill the jobs," the Southern Poverty Law Center has provided valuable insight into the problems and pitfalls of such programs.

Snap Shots

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